United States v. Diaz-Rosado

UNITED STATES OF AMERICA, Appellee,v.JOSÉ R. DÍAZ-ROSADO, Defendant, Appellee.

APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

Richard C. Klugh on brief for appellant.

John
A. Mathews II, Assistant United States Attorney, Rosa Emilia
Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, on brief for appellee.

Before
Torruella, Lipez, and Barron, Circuit Judges.

BARRON, Circuit Judge.

On
August 15, 2013, José Díaz-Rosado
("Díaz") was indicted in the United States
District Court for the Southern District of Florida for his
role in planning and organizing a maritime smuggling
operation involving over 1, 000 kilograms of cocaine. Five
days later, Díaz was indicted again -- this time, in
the United States District Court for the District of Puerto
Rico -- for his role in planning and organizing a maritime
smuggling operation involving over 1, 000 kilograms of
cocaine. Díaz contends that the Double Jeopardy Clause
of the United States Constitution bars his prosecution on the
Puerto Rico charges because the Florida charges already
encompass the conduct for which he was indicted in Puerto
Rico. For the reasons set forth below, we reject this
challenge and affirm the decision of the District Court to
deny Díaz's motion to dismiss the Puerto Rico
indictment on double jeopardy grounds.

I.

Because
Díaz's double jeopardy challenge to the Puerto
Rico indictment hinges in part on the procedural history of
the Florida case, we first need to describe the two
indictments and their subsequent travel in some detail. We
will then be well positioned to explain why we are
unpersuaded that the Puerto Rico indictment must be dismissed
on double jeopardy grounds.

A.

On
August 6, 2012, federal agents intercepted a vessel carrying
approximately 1, 032 kilograms of cocaine off the coast of
Guayama, Puerto Rico.[1] The vessel was registered to Díaz,
who had rented a dock for it in Fajardo, Puerto Rico. The
government later determined that Díaz also hired the
vessel's two-man crew: Jorge Suárez-Albelo and
Joel Perpiña-Quiles. Although Díaz was not on
board at the time of its seizure, he and another individual
were responsible for following behind the vessel in a
separate boat.

Roughly
five months later, on December 30, 2012, federal authorities
intercepted a second vessel off the coast of St. Croix,
United States Virgin Islands -- this one carrying
approximately 1, 157 kilograms of cocaine. This vessel had a
different two-man crew: José De León and Wilson
Concepción. Díaz had purchased this second
vessel. He also had directed an associate -- who later became
a confidential source of the Broward County, Florida,
Sherriff's Office -- to purchase two outboard motors for
it.

The
December seizure formed the basis for a one-count indictment
filed against Díaz in the United States District Court
for the Southern District of Florida on August 15, 2013.
Díaz was charged with one count of conspiracy to
possess with intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(ii). Díaz pleaded guilty several months
later.

During
sentencing, the Florida district court relied on both the
August and December seizures as evidence that Díaz was
responsible for trafficking 2, 189 kilograms of cocaine. The
Florida district court also applied a four-level sentencing
enhancement under § 3B1.1(a) of the United States
Sentencing Guidelines for acting as the organizer or leader
of a criminal activity involving five or more participants,
and a two-level sentencing enhancement under § 3C1.1 of
the Guidelines for obstruction of justice for encouraging the
confidential source to lie to government investigators.
Díaz was initially sentenced to life in prison.

Five
days after Díaz was indicted in Florida, the
government filed a two-count indictment against him in the
United States District Court for the District of Puerto Rico.
Based on the August seizure, the Puerto Rico indictment
charged Díaz with one count of conspiracy to import
more than five kilograms of cocaine into the United States,
in violation of 21 U.S.C. §§ 952, 960, and 963, and
one count of conspiracy to possess ...

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